Stephen Breyer holds the somewhat dubious distinction of being the
second-longest junior member of the United States Supreme Court in
American history, holding that distinction for some 12 years, until the
confirmation of Samuel Alito in 2006.
Breyer was the oldest of two sons of Gerald and Anne (nee' Roberts)
Breyer, a middle-class Jewish family in San Fransisco. His father was
the legal counsel to the San Fransisco Board of Education. Stephen
excelled academically and was an Eagle Scout. He was an active
participant on his debate team in high school, and had ambitions to be
a lawyer. After graduating with a Bachelor of Arts in Philosophy at
Stanford University, he earned a Bachelor of Laws from Harvard Law
School. In 1964, he served as a law clerk for retiring U.S. Supreme
Court Justice Arthur Goldberg, and in 1965, he worked in the anti-trust
division of the U.S. Department of Justice. In 1967, he left the
government to become a law professor at his old alma mater of Harvard
Law School, and that same year he married Joanna Hare, a British-born
psychologist from a distinguished family. He was well-regarded at
Harvard, and in 1970, Breyer wrote "The Uneasy Case for Copyright", a
detailed and critical examination of copyright law that remains
influential to this day. In 1973, he returned to Washington, D.C. to
work for the Watergate Special Prosecution Force, where he met a number
of influential Democratic politicians and rising liberal activists. One
of them was the future First Lady,
Hillary Clinton, although
the acquaintance was minor. In 1974, he published another book
(co-authored with Paul MacAvoy), "The Federal Power Commission and the
Regulation of Energy." That same year, he became Special Counsel for
the U.S. Senate Judiciary Committee, which was dominated by the
Watergate Scandal hearings, and once again made a positive impression
with his diligence and low-key approach. In 1975, he left that post and
returned to Harvard Unniversity, and in 1977, he became professor at
the university's Kennedy School of Government. He became a leading
authority on administrative law, and lectured about government
regulation of business. In 1979, he returned to the U.S Senate
Judiciary Committee to work as Chief Counsel. In that capacity, he
worked behind the scenes on highly technical legislation, and was key
to passing helped Airline Deregulation Act of 1979, which was most
notable for closing the Civil Aeronautics Board.
In 1980, he was nominated by President
Jimmy Carter to serve on the U.S.
First Circuit Court of Appeals, which has jurisdiction over eastern New
England and Puerto Rico. He had been strongly recommended by U.S.
Senator Edward Kennedy, with whom
he had worked closely over the past year. Breyer became the last Carter
judicial nominee to be confirmed by the U.S. Senate. Shortly after
joining the court, he wrote and published another book, "Regulation and
Reform" in 1982, which again was well-received for its methodical
analysis of administrative and regulatory law. He made a good
impression on local observers of Federal law and jurisprudence, and in
1985 he was appointed to the U.S. Sentincing Commission, where he
served until 1989. He played a key role in producing the Federal
Sentencing Guidelines, which made penalties for Federal crimes more
uniform. In 1992, he wrote another book on Federal administrative law,
"Breaking the Vicious Circle: Toward Effective Risk Regulation and
Regulation and Its Reform," which this time advocated specific
solutions to complex regulatory issues, which was again well-received.
That year, Arkansas Governor
Bill Clinton was elected President
of the United States. In 1993, Supreme Court Justice
Byron White announced his
retirement, and Breyer was given some consideration to succeed him. But
Clinton chose Ruth Bader Ginsburg, a
liberal judge from The U.S. Washington, D.C. Circuit Court of Appeals,
instead. In 1994, however, another member of the Supreme Court,
Harry A. Blackmun, announced his
retirement. Breyer wasn't initially Clinton's first choice. But he was
highly recommended by Senator
Edward Kennedy. With Clinton's
popularity plummeting around the nation, he was anxious to avoid
controversy, and Breyer was less controversial than some other possible
choices. Also helping him was that he was well-regarded by some
Republican U.S. Senators, including
Fred Thompson, with whom he
had worked with closely when Thompson was Chief Minority Counsel on the
Senate Judiciary committee in 1974, and also
Orrin Hatch, a strong conservative who
was an influential member of that committee since 1977. As a result,
Clinton nominated him. Initially, some Democrats were leery of him.
Senate Judiciary Committee Chairman Joe Biden
called some of Breyer's economic theories "elitist and presumptuous."
However, he made a favorable impression during the confirmation
hearings with his intelligence and low-key manner, and most Republicans
concluded that Breyer was the best they could hope for from the Clinton
administration and that he couldn't be worse than Blackman had been. He
was confirmed by a vote of 87 to 9.
On the court, he has compiled a mostly liberal record. He consistently
claims that the court should consider the potential consequences of its
rulings instead on affected people and interests rather than make
rulings solely on the basis of the Constitutional text and history.
This has put him at odds with some conservative members of the court,
most notably Antonin Scalia and
Clarence Thomas. He has cited
international law in a few of his rulings, which proved to be
controversial in some legal circles, and has been a consistent
supporter of Roe vs. Wade, which made abortion a Constitutional right.
These stands and his debate skills have made him the unofficial leader
of the liberal faction of the Court. However, some liberal advocates
are lukewarm about Breyer, regarding him as too willing to defer to law
enforcement and insufficiently skeptical of business interests, and he
is not considered an aggressive judicial activist in the tradition of
Earl Warren and
William J. Brennan. The court has
been at the center of many legal controversies, and he been in the
forefront of some of them. In 2005, he authored another book, "Active
Liberty: Interpreting Our Democratic Constitution," which is a
statement of his judicial and Constitutional philosophy. The book was
the topic of much discussion in legal and Constitutional circles.
